Citation Nr: 18151634 Decision Date: 11/19/18 Archive Date: 11/19/18 DOCKET NO. 15-31 179A DATE: November 19, 2018 ORDER New and material evidence having been submitted, the service connection claim for a low back disability is reopened. Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. REMANDED Entitlement to service connection for a low back disability is remanded. Entitlement to service connection for a left leg disability, described as cramps, weakness and tingling, including as secondary to a low back disability, is remanded. Entitlement to service connection for a right leg disability, described as cramps, weakness and tingling, including as secondary to a low back disability is remanded. Entitlement to service connection for hypertension, including as secondary to service connected sleep apnea and depression is remanded. FINDING OF FACT 1. A June 1989 rating decision denied the Veteran’s claim for service connection for a low back disability; the Veteran did not appeal, no new and material evidence was received within the appeal period, and the decision is final. 2. VA has received evidence since the June 1989 rating decision, which related to the basis for the prior denial of service connection for a low back disability and raises a reasonable possibility of substantiating the claim. 3. The Veteran filed a claim for TDIU on February 13, 2013. 4. The Veteran has been entitled to a 100 percent schedular rating and special monthly compensation at the housebound rate since December 26, 2012. CONCLUSION OF LAW 1. New and material evidence has been received to reopen the claim of entitlement to service connection for a low back disability. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 2. The criteria for TDIU have not been met at any point in the appeal period. 38 U.S.C. §§ 1155, 5110 (2012); 38 C.F.R. §§ 3.102, 3.400, 4.16 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the U. S. Army on active duty from June 1977 to June 1981 and from November 1985 to August 1988. He has additional service in the Army Reserve. This matter is before the Board of Veterans’ Appeals (Board) on appeal of a March 2014 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA). 1. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a low back disability A June 1989 rating decision denied the claim for service connection for a low back disability. The Veteran did not file a notice of disagreement and VA did not receive additional evidence regarding the claim within one year of notice of the decision, so the June 1989 rating decision is final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(b), 20.302. A claimant may reopen a finally adjudicated claim by submitting new and material evidence. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. New evidence is defined as existing evidence not previously submitted to the VA, and material evidence is defined as existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156(a). New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. Id. The Court of Appeals for Veterans Claims (Court) has held the phrase “raises a reasonable possibility of establishing the claim” must be viewed as “enabling rather than precluding reopening.” Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). The Court emphasized that 38 C.F.R. § 3.156 “does not require new and material evidence as to each previously unproven element of a claim.” Id. at 120. The Court further explained the provisions of 38 C.F.R. § 3.156(a) creates a “low threshold” for finding new and material evidence that is favorable to the claimant. Id. New evidence is sufficient to reopen a claim when it would trigger VA’s duty to provide an examination. See Shade, 24 Vet. App. at 118-19 (indicating new evidence raises a “reasonable possibility of substantiating the claim” if when considered with the old evidence it would at least trigger VA's duty to assist by providing a medical opinion). The evidence of record at the time of the June 1989 denial included medical and military personnel records showing the Veteran was robbed and beaten in July 1988. Hospital records record the Veteran’s left lower back was “tender”. However, the June 1989 rating decision indicates that service connection was denied because there was an “absence of objective symptoms of functional limitation.” Medical evidence added to the record since the prior denial shows the Veteran has been treated for a low back disability and underwent spinal surgery in December 2012. This evidence is new and material to the Veteran’s claim for service connection and reopening is warranted. See Shade, supra. 2. Entitlement to a total disability rating based on individual unemployability (TDIU) The Veteran discussed filing a TDIU claim with the RO by phone on February 13, 2013. He submitted a written claim for TDIU on August 8, 2013. The appeal now before the Board does not include any claim for increased rating and the issue of TDIU is not raised as an element of an increased rating claim per the holding in Rice v. Shinseki, 22 Vet. App. 447 (2009) at any earlier date. The earliest applicable date of claim for TDIU is therefore August 8, 2013. After the TDIU claim was filed, the Veteran was granted a 100 percent schedular rating and entitlement to special monthly compensation at the housebound rate, effective December 26, 2012. Thus, the issue of TDIU from that date to the present is now moot, as there is no additional benefit that would accrue based on a finding that TDIU is warranted. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); Bradley v. Peake, 22 Vet. App. 280, 293 (2008); see also 38 U.S.C. § 1114; 38 C.F.R. § 3.350. REASONS FOR REMAND The duty to assist requires VA to provide an examination when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with military service, and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C. § 5103A(d) (2012); 38 C.F.R. § 3.159(c)(4) (2017); see also McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). VA has a duty to ensure any medical examination or opinion it provides is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (overruled on other grounds, Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013)). A medical opinion is adequate where it is based upon consideration of the full medical history and describes a disability in sufficient detail so that the Board's evaluation will be fully informed. Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). 1. Entitlement to service connection for a low back disability is remanded. The evidence of record indicates the Veteran has a current low back disability. His service treatment records document injury to his low back when he was physically attacked and robbed in July 1988. VA’s duty to assist by providing a medical examination is triggered. See McLendon, supra. In addition, the Veteran submitted medical literature related to this claim. 2. Entitlement to service connection for a left leg disability, described as cramps, weakness and tingling, including as secondary to a low back disability is remanded. 3. Entitlement to service connection for a right leg disability, described as cramps, weakness and tingling, including as secondary to a low back disability is remanded. The Veteran claims disabilities in his right and left legs are secondary to his low back disability (discussed above). The Board finds the right and left leg disability claims are intertwined with the claim for service connection for a low back disability. Accordingly, they must be remanded for development as warranted by the development of the low back claim. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (issues are “inextricably intertwined” when a decision on one issue would have a "significant impact" on a veteran's claim for the second issue). 4. Entitlement to service connection for hypertension, including as secondary to service connected sleep apnea and depression is remanded. VA medical records document the Veteran suffers from hypertension. He claims this condition is causally related to his service connected sleep apnea or depression. In an informal hearing presentation, the Veteran’s representative argued that hypertension is causally related to sleep apnea and, in support, he referenced medical literature located on the internet at http://www.ncbi.nlm.nih.gov/pubmed/18367017 and http://www.mayoclinic.org/diseases-conditions/sleep-apnea/basic/complications/con-20020286 Two August 2015 VA medical opinions were obtained to assist the Veteran with this claim. The opinions were based on the examiners’ review of medical records and documents in the Veterans Benefit Management System (VBMS). No in person examination was provided. The first opinion, dated August 14, 2015, addressed the Veteran’s claim that his hypertension was causally related to sleep apnea. The examiner opined that hypertension is not causally linked to sleep apnea. However, he did not discuss medical literature which supports such a link. This examination is inadequate because it does not provide a full evaluation of the Veteran’s claim. See Stefl, supra. The second medical opinion, dated August 21, 2015, concluded there was no link between hypertension and the Veteran’s depression. The examiner specifically noted that depression is a risk factor for hypertension but indicated this does not indicate a causal relationship. The examiner pointed out general trends in the medical course of depression and hypertension. He did not discuss the Veteran’s condition and medical history. This opinion is inadequate to decide the claim because it fails to discuss the course of this Veteran’s disease. Id. The matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from May 2015 to present. 2. Ask the Veteran to complete a VA Form 21-4142 for any private medical treatment provider or facility that may have records relevant to his claims. Make two requests for the authorized records from any medical provider or facility identified, unless it is clear after the first request that a second request would be futile. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any low back disability. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease, including a July 1988 robbery and beating sustained by the Veteran. The examiner should discuss any medical literature submitted by the Veteran. If any low back disability is found to be related to service, the examiner must opine whether any right or left leg disability is either caused or aggravated by the low back disability. The examiner must address causation and aggravation separately. If aggravation is found, the examiner must attempt to establish a baseline level of disability prior to aggravation by the low back disability. The examination report must include a complete rationale for all opinions expressed. 4. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of his hypertension. The examiner must opine whether it is at least as likely as not (1) proximately due to service-connected sleep apnea and/or depression, or (2) aggravated beyond its natural progression by service-connected sleep apnea and/or depression. The examiner should discuss the Veteran’s contentions and medical literature submitted in support of those contentions. The term “aggravation” means an increase in the claimed disability; that is, a worsening of the condition beyond the natural clinical course and character of the condition due to the service-connected disability as contrasted to a temporary worsening of symptoms. (Continued on the next page)   If aggravation is found, the examiner must note the baseline level of severity of the hypertension prior to aggravation by the service connected sleep apnea or depression. The examination report must include a complete rationale for all opinions expressed. Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Jeanne Celtnieks, Associate Counsel